How likely is Myanmar to make policy changes after the ICJ ruling?

Myanmar’s denial of organized human rights abuses hold little water Photo: REUTERS

SALEEM SAMAD

Does Myanmar have any obligation to take the world court -- the International Court of Justice (ICJ) in The Hague – seriously?

The second question is whether Myanmar’s quasi-military ruler has the political will to implement the landmark judgment of January 23. Myanmar has officially rejected the International Court of Justice’s historic ruling and accused international rights groups of making exaggerated statements about the prevailing situation. It also rejected the UN fact-finding mission’s report on the basis of being “one-sided.”

It is well understood that the ICJ has no legal jurisdiction over Myanmar or any individual nation.

The ICJ ordered Myanmar to implement vital measures to protect its Rohingya population from facing any further atrocities. This ruling has been hailed as an “accomplishment of international justice.” The court further ordered Myanmar to ensure protection from the destruction of any evidence of “possible” genocide.

The ruling means that a global body, for the first time, has officially recognized the threat of abuse against the Rohingya, and ordered Myanmar to protect the community.

The verdict was indeed a significant triumph for the forcefully displaced Rohingya currently in refuge in Bangladesh. This ruling was also hailed by the government of Bangladesh, as the country is host to more than 1 million displaced Rohingya presently languishing in camps.

A lawsuit was brought to the ICJ by the Gambia, an impoverished Muslim state in Africa. The legal process was backed by the 57-nation Organization of Islamic Cooperation (OIC) in November at the highest body -- the United Nations -- for dispute resolution between states.

The OIC accused Myanmar of genocide against the Rohingya, in violation of a 1948 Genocide Convention. The Islamic body, as well as the United Nations, has condemned Myanmar’s refusal to repatriate the Rohingya as citizens of the country. Both bodies have raised concerns over the appalling human rights violations.

The challenges that remain the most significant impediments to the ICJ are that it has no power to execute its decisions and that it is voluntary in nature.

In 1993, the ICJ issued similar measures against Serbia after Bosnia had accused it of genocide. Just two years later, Serb forces killed thousands of Bosnian Muslim men and boys in what has become known as the Srebrenica massacre.

The ruling could not stop a second genocide in Europe after World War II.

Myanmar established an Independent Commission of Enquiry (ICOE) which acknowledges committing war crimes but not genocide during the military campaign.

The Myanmar government, headed by Nobel laureate for Peace Aung San Suu Kyi, has strongly denied organized human rights abuses. The regime systematically said that the military action, which followed militant attacks on Myanmar security forces in August 2017,  was “a legitimate counter-insurgency operation.”

The ICOE inquiry report mentions that nearly 900 people were killed. The commission failed to find assertions of gang-rape, or evidence to presume any intent of genocide. No one was surprised at the discrepancy between Myanmar and the international community over committing genocide.

The head of a UN fact-finding mission in Myanmar warned that there was a serious risk of genocide, and the mission did not hesitate to state in its final report, submitted in September 2019, that Myanmar should be held responsible in international legal forums for alleged genocide against the Rohingya.

Myanmar has questioned the legitimacy of the world court but is obliged under international law to comply with the ICJ ruling to provide regular reports to the ICJ, starting next May, to say what steps it has taken to prevent further abuse against the Rohingya.

It is highly unlikely that Myanmar will make any major policy changes to combat the discrimination against the Rohingya community, or provide support for international justice efforts. The United Nations Security Council (UNSC) has been paralyzed over the Rohingya crisis so far, with China shielding Myanmar from censure, which makes enforcement more difficult.

In this regard, an effective measure could be exerting diplomatic pressure by the international community, which has political and economic clout within the UN Security Council and can bring Myanmar to justice. The Convention against Genocide imposes a duty on states that are signatories to “prevent and to punish” genocide, as seen by Gambia’s ability to bring the case to the ICJ.

Until then, Myanmar will have an excuse to not take any measures for the repatriation, as well as the rehabilitation, of the displaced Rohingya. This difficultly will continue with a possible veto from China.

Whether Myanmar abides by the ICJ rulings remains to be seen. 

First published in Dhaka Tribune, 17 February 2020

Saleem Samad is an independent journalist, media rights defender, and is a recipient of the Ashoka Fellow and Hellman-Hammett Award. He can be followed on Twitter @saleemsamad